Health Care Complaints Commission v Ly [2024] NSWCATOD 129

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ly [2024] NSWCATOD 129 Hearing dates: 15 July 2024 Date of orders: 23 August 2024 Decision date: 23 August 2024 Jurisdiction: Occupational Division Before: H J Dixon SC, Senior Member P Murney, Senior Member A Lee, Senior Member J Sillince, General Member Decision: (1) The Respondent is guilty of unsatisfactory professional conduct. (2) The Respondent is guilty of professional misconduct. (3) Under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW) the Respondent is reprimanded. (4) Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration is suspended for a period of 6 months from the date of this decision. (5) Under s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on the Respondent's registration at the expiry of the period of suspension in order (4) above: (a) Not to practise as a pharmacist in charge. (b) To practise under category C supervision in accordance with the Pharmacy Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (c) At each supervision meeting the practitioner is to review and discuss their practice with their approved supervisor with particular focus on: (i) Obligations as a pharmacist relating to the importance of upholding the values and professional practice standards for behaviour expected of pharmacists towards individuals, the community and society at all times. (ii) Professional behaviour and conduct expected of registered pharmacists, as specified by the AHPRA Shared Code of Conduct. (iii) Importance of practice specific CPD to improve and maintain their professional practice standards and retain recency of practice. (iv) Creating and maintaining accurate and comprehensive records for all aspects of pharmacy practice. (v) Utilising the Pharmacy Boards Guidelines Pharmacy Board of Australia – Codes, Guidelines and Policies including: (A) Guidelines for dispensing of medicines. (B) Guidelines for proprietor pharmacists. (vi) Communication and managing challenging behaviour with staff and patients. (vii) Ethics and dispensing in pharmacy practice. (6) The Respondent is to pay the costs of the Commission pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), as agreed or assessed. Catchwords: Occupations-pharmacist-claims against pharmaceutical benefit schemes without dispensing relevant medications-improper and unethical conduct-unsatisfactory professional conduct-professional misconduct-suspension of registration with conditions imposed at expiry of suspension. Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3B, 139B, 139E, 149, 149A, 149C, 150, 150A, Sch 5D cl 7, cl 13 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 Health Care Complaints Commission v Grygie (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Litchfield [1997] NSWSC 207; (1997) 41 NSWLR 630 Health Care Complaints Commission v Lucire (No 2) [2023] NSWCATOD 31 Health Care Complaints Commission v Moawad [2020] NSWCATOD 19 Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 Lee v Health Care Complaints Commission [2012] NSWCA 80 Qasim v Health Care Complaints Commission [2015] NSWCA 282 R v Byrnes [1995] HCA 1; 183 CLR 501 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Texts Cited: None Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Tony Ly (Respondent) Representation: Counsel: K Sharma (Applicant) Dr P Dwyer (Respondent)